Judgment Both these appeals from order are against the orders passed by the respective District Judges in the election petitions. In both the appeals common question of law is involved and, therefore, they are being decided by this common judgment. 2. Since the pure question of law is involved in both the appeals the learned counsel for the respondents did not choose to file counter affidavits and learned counsel for both the parties have agreed to decide the appeal at the admission stage itself. 3. Appeal from order no. 1 96 of 2003 relates to the election of Adhyaksha, Zila Panchayat Champawat. The facts of this case are that the election for the office of Adhyaksha, Zila Panchayat Champawat was notified for nomination on 19.5.2003. Three candidates, namely, Lalit Mohan Pandey, Bhagirath Bhatt and Pooran Singh filed nomination papers and the election was held on 23.5.2003. Total number of votes casted for the office of Adhyaksha, Zila Panchayat, Champawat were 12. In the first round Pooran Singh received five, Bhagirath Bhatt 1 and Lalit Mohan Pandey 6 as the first preferential votes. In the second round after elimination of Bhagirath Bhatt, Pooran Singh got one as second preferential vote. Thus after eliminating Bhagirath Bhatt, Pooran Singh and Lalit Mohan Pandey both received six votes each. The election was held in accordance with the rules which provide proportionate representations by means of a single transferable votes by ballot. The Returning Officer on 24.5.2003 relying on the law laid down by the Apex Court in the case of Jaidarth Singh declared the office of the Adhyaksha, Zila Panchayat Champawat to be vacant in view of the fact that both the candidates, namely, Pooran Singh and Lalit Mohan Pandey received equal votes and none of them could secure the quota which was mandatory. Aggrieved by the order of Returning Officer dated 24.5.2003 Lalit Mohan Pandey filed election petition before the District Judge, Champawat who by order dated 28.7.2003 allowed the petition of Lalit Mohan Pandey and declared him elected as Adhyaksha, Zila Panchayat Champawat. Against the order of the District Judge, Champawat dated 28.7.2003 declaring Lalit Mohan Pandey as Adhyaksha, Zila Panchayat, Champawat, the appellant Pooran Singh has filed the present appeal. 4. The facts of appeal no. Against the order of the District Judge, Champawat dated 28.7.2003 declaring Lalit Mohan Pandey as Adhyaksha, Zila Panchayat, Champawat, the appellant Pooran Singh has filed the present appeal. 4. The facts of appeal no. 203 of 2003 are as under:- The election for the office of Adhyaksha, Zila Panchayat, Chamoli was held on 23.05.2003 under the provision of Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994 framed under the provisions of Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. The counting of votes was held on the same date i.e. on 23.05.2003. In the counting Rajendra Singh received eleven, Virendra Singh two and Sudarshan Singh ten as first preferential votes. After first round Virendra Singh who received lowest in first preferential votes was eliminated. In the second round Sudarshan Singh received one vote and thus both Rajendra Singh and Sudarshan got eleven votes each. Total votes polled were 23. The quota required for being elected as per Schedule II of the rules was 12. The Returning Officer on 24.05.2003 declared Rajendra Singh elected on the ground that he has received higher votes than Sudarshan Singh in the first round. Aggrieved by this order Sudarshan Singh filed election petition which was allowed by the District Judge, Chamoli on 1.8.2003 declaring the seat vacant on the ground that none of the candidates participated in the election, has received required quota to be elected. Aggrieved by the order dated 1.8.2003 declaring the office of the Adhyaksha, Zila Panchayat, Chamoli vacant Rajendra Sinah has filed appeal no. 203 of 1996. 5. The main question which is to be decided in these appeals is that in case where two candidates have received equal votes after eliminating the other person and none of them could get the required quota whether the seat should have been declared vacant or one of them should have been declared elected either on the basis of drawing of lots or on the basis of higher votes received in the first round. 6. Heard Sri Alok Singh, Sri D.S. Patni and Sri Pankaj Purohit learned counsel for the appellants, Sri L.P. Naithani, learned senior counsel assisted by Sri V.K. Kohli, Sri S.K. Posti and Sri V.D. Morari learned counsel for private respondents Sri U.P.S. Negi, learned Advocate General and Sri Nanak Chandra Gupta learned Standing Counsel for the State. 7. 6. Heard Sri Alok Singh, Sri D.S. Patni and Sri Pankaj Purohit learned counsel for the appellants, Sri L.P. Naithani, learned senior counsel assisted by Sri V.K. Kohli, Sri S.K. Posti and Sri V.D. Morari learned counsel for private respondents Sri U.P.S. Negi, learned Advocate General and Sri Nanak Chandra Gupta learned Standing Counsel for the State. 7. Learned Counsel for the appellant Sri Alok Singh has raised two submissions. First, the election petition filed by Lalit Mohan Pandey was not maintainable and the second submission was that the learned District Judge has erred in declaring Lalit Mohan Pandey as elected as the decision of the learned District Judge is contrary to the law laid down by the Apex Court in the case of Jaidrath Singh and another Versus Jivendra Kumar and others, reported in (2000) 3 Supreme Court Cases 154. Regarding the maintainability of the election petition he has submitted that under the rules election petition can be filed for two reliefs which have been provided under Rule 35 of the Rules which specifically states that the petitioner may claim either of the following declaration :- (a) that the election of the returned candidate is void. (b) that the election of the returned candidate is void and he himself or any other candidate has been duly elected in the present case. Since none of the candidates could receive the mandatory quota for being elected the Returning Officer had declared the seat as vacant. There was no elected candidate and as such the election petition was not maintainable. 8. I have perused the rules known as Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994 framed under the provisions of section 237 of Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 which have been adopted by State of UttaranchaJ. Chapter IV of the aforesaid rules relates to the election of Adhyaksha and Up-Adhyaksha. Rule 33 provides that the election petition calling any question the election of Adhyaksha or Up-Adhyaksha may be presented to the Judge at any time within 30 days from the date of election of the result. Under Rule 34 election petition shall specify the grounds on which the election petition of the returned candidate is questioned and shall contain a summary of the circumstances alleged to Justify the election petition being questioned on such grounds. Under Rule 34 election petition shall specify the grounds on which the election petition of the returned candidate is questioned and shall contain a summary of the circumstances alleged to Justify the election petition being questioned on such grounds. It further says that every unsuccessful candidate shall be a respondent to the petition. Under Rule 35 a petitioner may claim for declaration:- (a) that the election of the returned candidate is void. (b) that the election of the returned candidate is void and he himself or any other candidate has been duly elected. Rule 38 provides the procedure. Under Rule 40 the District Judge shall pass final order on the election petition. Under Rule 43 the procedure has been prescribed in case of equality of votes and under Rule 47 there is a provision for appeal against the order passed by the Judge. Rule 40, 43, and 47 of the aforesaid rules are quoted hereunder: - 40. Orders of the Judge.- (1) If the Judge after making such inquiry as he deems fit finds in respect of any person whose election is called in question by a petition, that his election was valid, he shall dismiss the petition as against such person and award costs at his discretion. (2) If the Judge finds that the election of any person was invalid he shall either- (a) declare a casual vacancy to have been created, or (b) declare another candidate to have been duly elected and in either case may award costs at his discretion. 43. Procedure in case of equality of votes.- (1) If during the trial of an election petition it appears that there is an equality of votes between candidates at the election and that one of them is to be eliminated then- (a) any decision, made by the Returning Officer under the provisions of these rules, shall insofar as it determines the question between those candidates, be effective also for the purpose of petition, and (b) so far as that question is not determined by such a decision, the Judge shall decide between them in accordance with the provisions of instructions in Schedule II to these rules. 47. 47. Appeal against the order of the Judge.- (1) An appeal shall lie from every order made by the Judge under Rule 40 to the High Court within thirty days from the date of the order: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. (2) Every person who prefers an appeal under sub-rule (1) shall enclose with the memorandum of appeal a Government Treasury receipt showing that a deposit of five hundred rupees has been made by him either in a government Treasury or in the State Bank of India in favour of the High Court as security of the appeal." 9. Learned counsel for the respondents has submitted that the appeal filed before this court is not maintainable. 10. The learned counsel for the respondents Sri V.K. Kohli has contended that the election petition filed by respondent was maintainable. He hag further submitted that the system of election by proportional representation by means of a single transferable vote embodies the rule of exclusion. The essence of this system is based on concept of common law, i.e. that the result may be declared at any costs irrespective of quota. He has further submitted that the judgment of Apex Court in Jaidrath's case (supra) does not refer the elimination theory laid down in Poona University's case (supra) and as such the question of per incurium will apply and the High Court is bound to follow the judgment of Poona University case. 11. So far as the question of maintainability of election petition is concerned, the learned counsel for the appellant Sri Alok Singh has submitted that since the Returning Officer has declared vacancy and none was declared elected, the election petition was not maintainable in view of Rule 35 of the Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994 which provides relief that can be sought in an election petition. Rule 35 (a) provides that the petitioner may file election petition for declaration that the election of returned candidate is void. Rule 35 (b) provides for declaration that the election of returned candidate is void and that he himself or any other candidate has been duly elected. Rule 35 (a) provides that the petitioner may file election petition for declaration that the election of returned candidate is void. Rule 35 (b) provides for declaration that the election of returned candidate is void and that he himself or any other candidate has been duly elected. The submission of Sri Kohli is that the word "and" in rule 35(b) should be read "or". In support of his contention he has placed reliance on the following judgments of Hon'ble Supreme Court where the Apex Court has laid down guide lines for interpretation of a statute. 1. AIR 1986 Supreme Court 1499, Mis Girdhari Lal & Sons Vs. Balbir Nath Mathur and others, 2. AIR 1986 Supreme Court 1162, M. Satyanarayania Vs. The State of Karnataka and another 3. AIR 1988 Supreme Court 2031, Atma Ram Mittal Vs. Ishwar Singh Punia 4. AIR 1989 Supreme Court 1160, Mis Rubber House Vs. M/s Excellsior Needle Industries Pvt. Ltd. 5. AIR 1977 Supreme Court 1516, Shri Rangaswami, The Textile Commissioner and others Vs. The Sugar Textile Mills (P) Ltd. and another 6. AIR 1968 Supreme Court 697, Savantilal Maneklal Sheth, Vs. Commissioner of Income tax " 7. AIR 1967 Supreme Court 1074, Khub Chand and others Vs. State of Rajasthan and others. 12. In AIR 1986 Supreme Court 1162 M. Satyanarayania Vs. The State of Karnataka and another the Apex Court has held that the statute whenever the language permits must be construed reasonably and rationally to give effect to the intention and purpose of legislature. In AIR 1986 Supreme Court 1499, M/s Girdhari Lal.& Sons Vs. Balbir Nath Mathur and others, the Apex Court has held that the primary and foremost task of a Court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. In AIR 1968 Supreme Court 697, Savantilal Maneklal Sheth, Vs. Commissioner of Income-tax the Apex Court has held that it is a sound rule of interpretation that a statute should be so construed as to prevent the mischief and to advance the remedy according to the true intention of the makers of the statute. 13. In all the cases cited above the Apex Court has adopted the same principle for interpretating a statute. . 14. 13. In all the cases cited above the Apex Court has adopted the same principle for interpretating a statute. . 14. The learned counsel for the appellant Sri Alok Singh has drawn my attention to the case of DADI JAGANNAADHAM V. JAMMULU RAMULU AND OTHERS, reported in (2001) 7 Supreme Court Cases 71 in which the Apex Court in para no. 13 has held as under :- "We have considered the submissions made by the parties. The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there." 15. In Shyam Sunder and others Vs. Ram Kumar and another, reported in (2001) 8 Supreme Court Cases 24, the Apex Court in paragraph no. 35 has held as under :- "Generally rules of interpretation are meant to assist the court in advancing the ends of justice. It is, therefore, true in the case of application of rule of benevolent construction also. If on application of the rule of benevolent construction, the court finds that it would be doing justice within the parameters of law there appears to be no reasons why such rule of construction be not applied in the present case. But there are limitations on the powers of the court, in the sense that courts in certain situations often refrain themselves from applying the rule of benevolent or liberal construction. The judicial precedents have laid down that, ordinarily, where and when the rule of benevolent construction is required to be applied and not to be applied. But there are limitations on the powers of the court, in the sense that courts in certain situations often refrain themselves from applying the rule of benevolent or liberal construction. The judicial precedents have laid down that, ordinarily, where and when the rule of benevolent construction is required to be applied and not to be applied. One of the situations is, when the court finds that by application of the rule of benevolent construction it would be Respondent-legislating a provision of statute either by substituting, adding or altering the words used in the provision of statute either by substituting, adding or altering the words used in the provision of the Act. In such a situation, generally courts have refrained themselves from applying the rule of benevolent construction. Under the cover of application of the rule of benevolent construction a court is not entitled to re-legislate a provision of a statute and td do violence to the sprit of the provision of the Act so construed. The second situation is when the words used in a statute are capable of only one meaning. In such a situation, the courts have been hesitant to apply the rule of benevolent construction. But If it is found that the words used in the statute give rise to more than one meaning, in such circumstances, the courts are not precluded from applying such rule of construction. The third situation is when there is no ambiguity in a provision of statute so construed. If the provision of a statute is plain, unambiguous and does not give rise to any doubt, in such circumstances, rule of benevolent construction has no application. However, if it is found that there is a doubt in regard to the meaning of a provision or word used in the provisions of an enactment, it is permissible for the court to apply the rule of benevolent construction to advance the object of the Act." 16. From the aforesaid judgment of the Apex Court cited by the learned counsel for both the parties, it is clear that the court while interpreting a statute must ascertain the intention of the legislature and the statute should be so construed as to prevent the mischief and to advance remedy according to the true intention of the makers of the statute. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. As held by Hon'ble Supreme Court the courts have been hesitant to apply the rule of benevolent construction but if it is found that the words used in the statute give rise to more than one meaning, the courts are not precluded from applying such rule of construction. If a provision of a statute is unambiguous and does not give rise to any doubt, in such circumstances the rule of benevolent construction has no application. Generally, the rule of benevolent construction is applied in the case of beneficial legislation. I find force in the submission of learned counsel for the appellant. 17. In the present case neither the statute is beneficial legislation nor it is ambiguous or gives rise to any doubt. It is also not the case of either of party that any words used in the statute give rise to more than one meaning and as such the principles of benevolent construction are not applied and the statute is to be interpreted harmoniously. In case the words "and" is read as "or" in Rule 35 (b), Rule 35(a) will become redundant. I find no force in the submission of the learned counsel for the respondents that the statute should be construed by applying the method of benevolent construction. 18. Learned Additional Advocate General has also made submission on the question of maintainability of election petition. He has further submitted that since no one could get the mandatory quota the Returning Officer has rightly declared vacancy and since no one was elected the election petition was not maintainable in view of Rule 35 of the Rules. He has further submitted that the word "and" should be read harmoniously and it cannot be read as "or". He has further contended that Poona University Case is not applicable in the present case. 19. Sri S.K. Posti learned counsel for the respondent has contended that the present appeal on facts and law is similar to the Jaidrath's case and Poona University case is not applicable. 20. Sri Pankaj Purohit learned counsel for the appellant in appeal no. He has further contended that Poona University Case is not applicable in the present case. 19. Sri S.K. Posti learned counsel for the respondent has contended that the present appeal on facts and law is similar to the Jaidrath's case and Poona University case is not applicable. 20. Sri Pankaj Purohit learned counsel for the appellant in appeal no. 203/2003 has contended that since Poona University case has been decided by the Full Bench, Jaidrath's case though it is a later case was decided by the Division Bench and as such the court is bound to follow the principles laid down in Poona University case. 21. Whether the election petition before the District Judge was maintainable or not, or whether the appeal filed against the order of the District Judge is maintainable or not, similar question arose in the case of Jaidrath Singh (supra) wherein the Hon'ble Supreme Court in paragraph no. 3 has held that the maintainability of the appeals was challenged in proceedings with which we are not concerned. Ultimately, the High Court was required to hear and decide the appeals on their merits. Even assuming that the election petition was not maintainable two wrongs do not make one right, the appeal is to be decided by the High Court on merit. 22. On merit of the appeal, the learned counsel for the appellants has submitted that the order passed by the District Judge in the election petition declaring Sri Lalit Mohan Pandey elected in spite of the fact that he could not secure the required quota for being elected is absolutely against the law laid down by Hon'ble Supreme Court in the case of Jaidrath Singh. The facts of the Jaidrath Singh's case are squarely covered with the facts of the present case. In Jaidrath Singh's case the election of Adhyaksha, Zila Panchayat, was in question. Three persons, namely, Jivendra, Manvendra and Smt. Gayatri Verma participated in the election held on 22.05.1995. Total votes polled were 31. Jivendra got 10 first preference votes, Manvendra got 14 first preference votes and Gayatri got 7 first preference votes. The quota for securing result was 16, which none of the three candidates could secure. Since Gayatri had secured lowest number of first preference votes, she was eliminated and in the second count, Jivendra got 5 and Manvendra got one. Jivendra got 10 first preference votes, Manvendra got 14 first preference votes and Gayatri got 7 first preference votes. The quota for securing result was 16, which none of the three candidates could secure. Since Gayatri had secured lowest number of first preference votes, she was eliminated and in the second count, Jivendra got 5 and Manvendra got one. Thus, after the second count Jivendra and Manvendra both secured 15 votes each. The Returning Officer decided to draw lots and by reason thereof Jivendra was declared elected. 23. Manvendra filed election petition which was allowed against the order allowing election petition, appeal was filed before the High Court. The High Court on a construction of Schedule II held that neither Jivendra nor Manvendra had, on the second count, secured the quota of 16. No lots could have been drawn nor any body could be declared as elected, on the basis that he had secured large number of first preferential votes, for the reasons that none was able to secure the mandatory quota. Accordingly the High Court declared vacancy in the office of the Adhyaksha. Against the declaration of vacancy by the High Court, aggrieved party approached the Apex Court and the Apex Court, in paragraph no. 16 has held as under :- "No resort to the drawing of lots could have been made in the absence of an instruction in that behalf in the Schedule (see University of Poona Vs. Shanker Narhar Ageshe and others) we are of the opinion, in the circumstances, that the returning officer was not entitled to draw lots between Jivendra and Manvendra, the High Court was, therefore, right in holding that the election of Jivendra by the draw of lots was invalid. In paragraph no. 17 of the aforesaid judgment the Apex Court has held as under:- "Accordingly, the declaration of the High Court that there was a vacancy in the office of the Adhyaksha was justified." 24. Similar are the facts of the present case. In the present case also three persons contested and after eliminating the person; who secured lowest votes as first preference votes Sri Pooran Singh and Sri Lalit Mohan Pandey both secured 6 votes after the second count. Since total votes polled were 12. Similar are the facts of the present case. In the present case also three persons contested and after eliminating the person; who secured lowest votes as first preference votes Sri Pooran Singh and Sri Lalit Mohan Pandey both secured 6 votes after the second count. Since total votes polled were 12. Adopting the formula as given in the Schedule II the quota comes to 7 and neither Pooran Singh nor Lalit Mohan Pandey have reached to the mandatory quota for being elected. The learned counsel for the appellant has submitted that as the facts of both the cases are similar the District Judge has erred in declaring Lalit Mohan Pandey elected though he had not secured mandatory quota for being elected. 25. Sri L.P. Naithani learned senior counsel appearing on behalf of private respondents has supported the order passed by the District Judge on the ground that first, there is no provision in schedule to meet a situation such has arisen in the present case, namely, when after eliminating the person who has secured lowest first preferential votes, two persons got equal votes how the result will be declared. In such a situation the Returning Officer should have applied the principle laid down in the judgment of Full Bench of Apex Court in the case of University of Poona and others Versus Shankar Narhar Ageshe and others, reported in (1972) 3 Supreme Court Cases 186. He has submitted that in the aforesaid case even the quota was not achieved yet result was declared. He has further submitted that the office of the Adhyaksha, Zila Panchayat, is a constitutional office which cannot be permitted to remain vacant. Under Article 243 E of the Constitution of India which provides continuity to the office of Adhyaksha, Zila Panchayat and in Schedule 11 number of powers have been given to the Panchayat and in case the result is not declared and the office is declared vacant, the purpose to provide powers under the Constitution will be defeated and the continuity of the office which is provided under the Constitution will be nullified. Sri Naithani has further submitted that the quota is not relevant where there are only two candidates as held by the Apex Court in the Poona University case. Sri Naithani has further submitted that the quota is not relevant where there are only two candidates as held by the Apex Court in the Poona University case. He has further submitted that Poona University case was decided by Full Bench while Jaidrath Singh's case was decided by the Division Bench of the Apex Court though it is later and as such under Article 141 of the Constitution, the court is bound to follow the Full Bench case. Mr. Naithani has further submitted that the illustrations cannot be treated as part of enactment and the Returning Officer was bound to follow the theory of exclusion as held by the Apex Court in Poona University case. Further because the theory of exclusion has got the legislative recognition under Rule 75 of the Conduct of Elections Rules, 1961, under rule 6 in the schedule to the Presidential and Vice-Presidential Elections Rules, 1952 as held by the Apex Court in paragraph no. 12 of Poona University case. 26. It will be relevant to mention the facts, in brief, of Poona University case. To fill up vacancy of Vice-Chancellor election was held under the Poona University Act. At the election held on May g, 1970 total numbers of votes tendered were 149. One of the vote was invalid and thus valid votes were 148. The election was in accordance with section 56 of the Act by the system of proportional representation by means of a single transferable vote by ballot. In the first preference votes Dr. Apte secured 58, Principal Kulkarni 37 and Principal Suru 53. Since Principal Kulkarni received the lowest number of first preference votes he was eliminated on the first count. In the second preference votes Dr. Apte received 12 and Principal Suru received 17. After the second count both Dr. Apte and Principal Suru secured 70 votes. Dr. Apte was declared elected because in the first count he had a clear majority of 5 votes. 27. The election of Dr. Apte was challenged in the High Court on the ground that the tie between Dr. Apte and Principal Suru was to be resolved by drawing of lots amongst other grounds to which I am not concerned here. Dr. Apte was declared elected because in the first count he had a clear majority of 5 votes. 27. The election of Dr. Apte was challenged in the High Court on the ground that the tie between Dr. Apte and Principal Suru was to be resolved by drawing of lots amongst other grounds to which I am not concerned here. The High Court held that where only two counting candidates remained to fill up only one vacancy and both of them had the same number of votes the tie of votes between the two counting candidates was to be solved by the principal of decision by drawing of lots. Against the order of the High Court the aggrieved party approached Hon'ble Supreme Court and the Apex Court accepted the appeal and set aside the judgment of the High Court. 28. Rule 26 of the Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994 is relevant for the purpose of adjudication of the case. Rule 26 of the aforesaid rules is quoted hereunder:- "After all the valid ballot papers have been arranged in parcels according to the first preference recorded for each candidate, the Returning Officer shall proceed to determine the result of the voting in accordance with the instructions contained in Schedule II to these rules. II 29. Thus, the result is to be declared in accordance with the instructions contained in Schedule II. Clauses 2, 3, 4, 5 and 6 of the Schedule II are relevant and as such are being reproduced hereunder:- "(2) the expression "First preference" means the NO.1 set opposite the name of any candidate, the expression "second preference" similarly means the No.2 the expressions "third preference" the No. 3 and so on:- (3) the expression "next available preference" means the second or subsequent preference recorded in consecutive numerical order for a counting candidate, preferences for candidates already excluded being ignored. (4) the expression "unexhausted papers" means a ballot paper on which a further preference is recorded for a continuing candidate: (5) the expression "exhausted" means a ballot paper on which no further preference is recorded for a continuing candidate: provided that a paper; shall be deemed to be exhausted in any case in which- (a) the names of two or more candidates whether continuing or not are marked with the same figure and are next in order of preference : or (b) the name of the candidate next in order of preference whether continuing or not, is marked by a number not following consecutively after some other number on the ballot paper or by two or more numbers. 2. Ascertain the number of first preference votes secured by each candidate and credit him with that number. 3. Add up the numbers so credited to all the candidates, divide the total by two and add one to the quotient disregarding any remainder. The resulting number is the quota sufficient to secure the return of candidates at the election. 4. (1) if there are only two contesting candidates then: (a) if one candidate gets larger number of first preference votes than the other, declare the former as elected : or (b) if both the candidates get equal number of first preference votes, determine the result by drawing of lots. Exclude the candidate on whom the lot falls and declare the other candidate as elected. (5) If at the end of the first or any subsequent count the total number of votes credited to any candidate is equal to or greater than the quota or there is only one continuing candidate, that candidate is declared elected. (6) If at the end of any count, no candidate can be declared elected: (a) exclude the candidate who up to that stage has been credited with the lowest number of votes: (b) examine all the ballot papers in his parcel and sub-parcel, arrange the unexhausted papers in sub-parcels according to the next available preference recorded thereon for the continuing candidates, count the number of votes in each such sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub-parcel to that candidate and make a separate sub-parcel of all the exhausted papers: and (c) see whether any of the continuing candidate has, after such transfer and credit, secured the quota. If, when a candidate has to be excluded under clause (a) above, two or more candidates have been credited with the same number of votes and stand lowest on the poll, exclude that candidate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates decide by lot which of them shall be excluded. All the sub-parcel of exhausted paper referred to in clause (b) shall be set apart as finally dealt with and the votes recorded thereon shall not thereafter be taken into account." 30. Thereafter in the Schedule II itself an illustration is given how the votes will be counted and result declared. In clause (3) of the Schedule it is provided how the quota will be fixed. It is also provided that the resulting number which is the quota sufficient to secure the return of candidates at the election. It is mandatory provision and one can be declared elected only if he has achieved the required quota as provided under clause 3 of Schedule II. Clause 4, 5 and 6 provide procedure for elimination of candidates and counting of votes in first, second and third rounds etc. However, there is no provision in the schedule to meet a situation for declaration of result where even after eliminating other persons two candidates have secured equal votes and none of them secured the quota. Even in the illustration there is no mention to meet such a situation. 31. Learned Senior Counsel Sri L.P. Naithani has submitted that illustration cannot either curtail or expand the ambit of the section which alone forms the enactment. He has placed reliance on the book of Sri G.P. Singh on interpretation of statute page 117 wherein referring the judgment, 83_ Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji, AIR 1938 PC 67, p. 70; Aniruddha Mitra v. Administrator General of Bengal, AIR 1949 PC 244, p. 250; Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404, p. 406 it is written that illustration appended to a section form part of the statute and although forming no part of the section are of relevance and value in the construction of the text of the section and they should not be readily rejected as repugnant to the section. But illustrations cannot have the effect of modifying the language of the section and they cannot either curtail or expand the ambit of the section which alone forms the enactment. 32. Rule 26 of the aforesaid rules provides for determination of result in accordance with the instructions contained in Schedule II to the rules. Clause 3 of the Schedule II provides for fixing of quota and it is a mandatory requirement to secure the quota for being elected. As already held clauses, 4, 5 and 6 provide the procedure for counting of votes and elimination of the candidates who have secured lowest votes. Thus clauses of Schedule have been explained by illustrations and there was no question of either curtailing or expanding the ambit of the rules or clauses of schedule. I find no force in the submission of the learned counsel for the respondents for the reasons recorded above. 33. Learned Senior Counsel Sri L.P. Naithanl has further submitted that the Poona University case was decided by the full court of Hon'ble Supreme Court in 1972. Though Jaidrath's case is of 2000 and is later yet it has been decided by the Division Bench of the Apex Court. The courts are bound to follow Poona University case which has been decided by the larger bench. He has further submitted that since the Poona University case was not considered in Jaidrath's case and as such principle of per incurium will apply. In support of his contention he has placed reliance on the judgment of the Apex Court in the case of Commissioner of Income tax, Bihar Vs. Trilok Nath Mehrotra and others, reported in (1998) 2 Supreme-Court Gaseso289 in which the Apex Court in paragraph no. 4 has held as under:- "We do not find any conflict in the law laid down in the case of R.M. Chidambaram Pillai, (1977) 1 SCC 431 with the law laid down in the earlier two cases. The decision in the case of Raj Kumar Singh Hukam Chand, (1970) 2 SCC 436 was rendered by a Bench of three Judges. Therefore, even assuming that there was a conflict between that decision and the decision rendered in Chidambaram Pillai case which was rendered by a Bench of two Judges, the decision of larger Bench will prevail. " 34. Sri Naithani has further placed reliance on the judgment of N.S. Giri Vs. Therefore, even assuming that there was a conflict between that decision and the decision rendered in Chidambaram Pillai case which was rendered by a Bench of two Judges, the decision of larger Bench will prevail. " 34. Sri Naithani has further placed reliance on the judgment of N.S. Giri Vs. Corporation of City of Mangalore and others, reported in (1999) 4 Supreme Court Cases 697 in which the Apex Court in paragraph no. 12 has held as under:- "A decision by the Constitution Bench and a decision by a Bench of more strength cannot be overlooked to treat a later decision by a Bench of lesser strength as of a binding authority; more so, when the attention of the Judges deciding the latter case was not invited to the earlier decisions available." 35. It is well settled principle that in case of conflict between the two decisions, the decision of the larger Bench will prevail but it is not the case before me. In Poona University case the question involved was that in case two persons have secured equal votes whether the result should be declared on the basis of drawing of lots between them or on the basis of higher votes received by candidate in first preference votes. Further neither appellant nor the respondent could show that in Poona University case also there was a provision for mandatory requirement of securing; the mandatory quota for being elected. In the present case the question involved is that in case where two candidates have received equal votes after eliminating the other candidates who had received lowest first preferential votes and none of them reached to the mandatory required quota as provided under the rules whether the seat should have been declared vacant or one of them should have been declared elected either on the basis of drawing of lots or on the basis of higher votes received in the first round. Though there is no provision in the schedule to meet such a situation. On the Contrary there is a mandatory requirement of securing the required quota for being elected. Though there is no provision in the schedule to meet such a situation. On the Contrary there is a mandatory requirement of securing the required quota for being elected. Further the full Bench decision is in respect of Poona University in which the election of Vice-chancellor which was held under section 56 of the Poona University Act whereas in the Jaidrath's case which has been decided by the Division Bench the dispute was related to the election of Adhyaksha, lila Panchayat on the basis of rules which are also involved in the present case. Learned Senior Counsel Sri L.P. Naithani has submitted that the decision of Apex Court in Jaidrath's case is per in curium. I do not find any force in this submission. As already observed above that in Poona University case the question involved was different to the present case and further the case of Poona University was in respect of the election of Vice-Chancellor of Poona University in accordance with the Act and statute of the University.- In the case of Jaidrath and in the present appeal the question involved is whether a person can be elected without acquiring the mandatory quota which is fixed under the rules. Further more, in paragraph no. 16 of Jaidrath's case there is a reference of Poona University case also so it cannot be said that the decision in Jaidrath's case is per incurium. Since the question involved in the present appeal as well as in Jaidrath's case is; the same which arises from the aforesaid rules the Returning Officer has rightly followed the Jaidrath's case and the District Judge, Champawat has erred in allowing the election petition and in declaring Lalit Mohan Pandey as elected. 36. So far as appeal no. 203/2003 Rajendra Singh Vs. Sudarshan Singh Kathit and others is concerned learned Standing Counsel for State of Uttaranchal has submitted that after declaring the vacancy for the office of Adhyaksha, lila Panchayat, Chamoli by the District Judge, Chamoli while deciding the election petition the State Election Commissioner on 13.8.2003 issued notification for reelection and in pursuance thereof re-election for the office of Adhyaksha lila Panchayat, Chamoli was held on 28.8.2003 in which Sri Rajendra Singh, appellant has got 14 votes out of 23 votes and has been declared elected. He has drawn my attention to the fax message received by him in this respect. He has drawn my attention to the fax message received by him in this respect. In view of this, the appeal has become infructuous. 37. For the reasons recorded above appeal no. 196 of 2003 Pooran Singh Vs. District Magistrate/Returning Officer, Champawat and others is allowed and the impugned order dated 28.7.2003 passed by the District Judge, Champawat, is quashed. Appeal no. 203 of 2003 is dismissed as infructuous. No order as to costs.